I view, you view, he/she/it views

YouView is a new ‘converged’ AV project in the UK, jointly run by the public service broadcasters and some communications providers (BT, Arqiva and TalkTalk). It’s based around a set-top box which facilitates access to broadcast TV signals (Freeview) as well as on-demand content through a broadband connection. Some of you may know it by its working title, Project Canvas. The new name became public in mid-2010 and was officially launched later that year. Its main function is to get on-demand content onto the TV screen, particularly for audiences without satellite or cable subscriptions.

There have been various delays (and changes in the participants) but this year it’s finally up and running and ready for Christmas. It’s having a little bit of bother with its trade mark, though. When the name was unveiled, there was plenty of chatter about whether it would face problems in being compared with YouTube. That didn’t seem to go anywhere. But first at the Registrar of Trade Marks (decision), and now in the High Court ([2012] EWHC 3158 (Ch)) an objection has been upheld on the grounds that there is a likelihood of confusion with a different already registered, similar mark in the same class, ‘Your View‘. As far as I know, this is the relevant service, but I don’t know much more about it or how long it has been used; it’s a brand within a UK telecoms company called Total. The application was made in June 2009. YouView’s was made in April 2010. The domain linked above has been registered for six years and Total had certainly used it well in advance of application, but it’s not the issue in the case; it’s clearly legitimate and not some kind of cash-in.

Although the application of trademark law is relatively straightforward here, two points (possibly) tangents struck me as interesting. The first is about similarity. In the original hearing, there were many issues, with YouView prevailing on some and Your View prevailing on others. But on appeal, YouView is still criticising the finding that its application is for a mark similar to the existing mark, and ends up arguing that the term ‘telecommunications services’, mentioned in the Your View mark, should be defined as ‘the core of telecommunications, which are the kind of services that are provided by telecommunication undertakings in conducting their telecommunications remit – telephone data and broadband – and are not services that are essentially broadcasting services‘. This would mean that YouView’s application for ‘apparatus for television or radio reception’ would not be a problem.

Floyd J is not having it, though, and even has a nice little discussion of the Ofcom communications market reports on changes in telecommunications. (Although not discussed, EU law no longer talks all that much about telecommunications, but instead about electronic communications networks (Dir 2002/21, art 2)). It also occurs to me that there is an interesting claim being made by YouView that what it does is ‘television or radio’, particularly in the light of EU definitions of AV media services, where television means a linear (not on-demand service), whether through broadcasting or telecommunications, including the Internet. But anyway, the result is that the trade mark application of the perfect example of convergence (is it a TV? is it a computer? is it linear? is it interactive?) is successfully opposed (in part – other aspects survive) because of convergence. You couldn’t make it up…

(There is also an issue regarding the definition of software / databases, and YouView is unsuccessful on this point, too).

The other, rather fun, point of interest to me, was the distinction between you view and your view from a grammatical point of view. YouView argued (again, unsuccessfully) that you view might be imperative whereas your view is possessive. I must confess that I had never give much thought to whether I was being commanded to view or not.